Criminal and Quasi-Criminal Law - ONCA

The appellant, D.G., appealed his conviction for sexual assault.

The trial judge had found significant credibility issues with the complainant's evidence, including inconsistencies and missing journals, but still convicted.

The Court of Appeal found the trial judge's reasons inadequate for failing to explain how he could believe the complainant's evidence despite these identified credibility problems.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant, convicted of first-degree murder and robbery, appealed on the sole ground that his trial counsel breached the duty of loyalty, effectively depriving him of counsel.

The appellant argued that counsel acted as amicus curiae rather than defence counsel, undermining his defence through misguided actions and communications with the Crown, including lying to gain trust and sharing defence strategy.

The Court of Appeal dismissed the appeal, finding that while counsel's actions were at times misguided and unethical (e.g., lying about his background), they did not constitute a breach of the duty of loyalty.

The court applied the two-part test for breach of loyalty, requiring an actual conflict of interest and impairment of representation, concluding that counsel's actions, though inadvisable, were not motivated by conflicting loyalties but rather by an attempt to manage a difficult client in a challenging case with strong Crown evidence.

The Crown appealed a Summary Conviction Appeal Court decision that overturned the accused's convictions for impaired driving and operating a motor vehicle with a prohibited blood alcohol concentration.

The appeal judge had found that the Crown failed to prove a breath demand was made, which precluded reliance on the evidentiary shortcuts in former ss. 258(1)(c) and (g) of the Criminal Code.

The Court of Appeal dismissed the Crown's appeal, confirming that while the lawfulness of a demand need not be proven to use the shortcuts, the fact that a demand was made is a condition precedent.

The Court also agreed that the defence's failure to object to the certificate's admissibility when tendered did not prevent them from arguing in closing that the Crown failed to prove an essential element of the offence.

The appellant, Abdulaziz Al-Enzi, appealed his conviction for aggravated assault and his 30-month sentence, which arose from a jailhouse altercation.

The appeal challenged the trial judge's decision to proactively invite submissions and grant a defence motion to reopen the case after noticing discrepancies in video evidence during judgment preparation.

The Court of Appeal dismissed both the conviction and sentence appeals.

The court affirmed the trial judge's judicial exercise of discretion in reopening the trial, finding it was done in the interest of fairness and consistent with the Hayward test.

The court also found the sentence fit, citing serious aggravating factors including the assault's occurrence in a correctional facility, the use of a concealed weapon, and the complainant's permanent injuries.

The Court of Appeal for Ontario considered a motion by the Attorney General of Canada to extend the suspension of a declaration of constitutional invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The lower court had found that the "fifth working day review" for administrative segregation violated section 7 of the Canadian Charter of Rights and Freedoms due to the lack of meaningful independent review.

The respondent sought an extension to allow Parliament to enact Bill C-83, which would replace administrative segregation with "structured intervention units." The court granted the extension to April 30, 2019, finding that immediate effect would pose unacceptable danger to correctional personnel and inmates, despite expressing concern about Canada's delay in addressing the constitutional infirmity and the absence of interim measures or adequate explanation of how the proposed legislation would remedy the breach.

The appellant was convicted of sexual assault and sexual interference against his 15-year-old cousin.

The Crown relied on the complainant's pregnancy as corroborating evidence of the assault.

The application judge dismissed the appellant's section 276 application seeking to cross-examine the complainant about other sexual activity that could account for her pregnancy.

The trial judge, who took over after the application judge became unable to continue, held that he was bound by the application judge's ruling.

The Court of Appeal allowed the appeal, finding that the application judge erred in refusing the cross-examination and that the trial judge erred in holding himself bound by the prior ruling.

The court ordered a new trial.

The appellant sought leave to appeal his conviction for driving over the legal limit, arguing that his statements to police at the accident scene were statutorily compelled under the Highway Traffic Act and violated his section 7 Charter rights.

The Court of Appeal dismissed the application for leave to appeal, finding that the smell of alcohol alone justified the approved screening device demand and the police had established the driver's identity without relying on the appellant's statements.

The proposed appeal did not raise a question of law of significance to the administration of justice beyond the case.

The appellant appealed his conviction, arguing that the trial judge erred in her Vetrovec warning to the jury regarding a 'mixed witness' who gave evidence favourable to both the Crown and the defence.

The appellant contended that the trial judge should not have directed the jury to look for confirmatory evidence of the exculpatory portions of the witness's testimony.

The Court of Appeal dismissed the appeal, finding that the trial judge made it clear the jury could accept the testimony without confirmatory evidence.

The Court noted that the instruction was fair to the appellant, as it did not repeat strong inculpatory evidence and provided a path to accept the exculpatory evidence without confirmation.

Furthermore, defence counsel did not object to the charge at trial.

The appellant appealed his convictions for robbery, use of an imitation firearm, break and enter, and breach of probation, arguing the trial judge erred in assessing eyewitness identification evidence.

The Court of Appeal dismissed the appeal, finding the trial judge carefully considered the evidence and was entitled to conclude that the circumstantial evidence, including descriptions of clothing and the discovery of a replica gun, proved the case beyond a reasonable doubt.

The appellant appealed his conviction and sentence, arguing that the trial judge gave improper advice prior to his re-election of mode of trial as a self-represented accused.

The Court of Appeal dismissed the appeal, finding that the trial judge properly explained that a jury trial would be more complicated and make it more difficult for the judge to provide necessary guidance compared to a judge-alone trial.

The appellant appealed a decision of the Ontario Review Board refusing to order an independent assessment at the Royal Ottawa Hospital.

The appellant did not challenge his continued detention at Oak Ridge.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that an independent assessment was unnecessary was reasonable and supported by the uncontradicted evidence of a doctor.

The applicant sought leave to appeal a summary conviction appeal court decision regarding whether a police officer had reasonable and probable grounds to make a breath demand.

The Court of Appeal refused leave, noting that appeals under s. 839(1) of the Criminal Code are confined to questions of law alone.

The court found the proposed ground was essentially a question of fact, did not raise issues of significance to the general administration of criminal justice, and was devoid of merit.

The appellant appealed his conviction and sentence.

He argued the trial judge erred in interpreting the phrase 'known to the police' and in delaying the ruling on his stay application until the end of the trial.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's interpretation reasonable and the timing of the stay ruling a proper exercise of discretion that caused no prejudice.

The sentence appeal was also dismissed as the sentence was deemed fit.

The Crown appealed the acquittals of a lawyer charged with conspiracy, counselling, and attempt to launder the proceeds of crime following an undercover police operation.

The trial judge had acquitted the accused on all counts.

The Court of Appeal found that the trial judge made legal errors in her analysis of the conspiracy and attempt counts, including misapprehending the required parties to a conspiracy and incorrectly characterizing the accused's conduct as mere preparation.

The appeal was allowed in part, setting aside the acquittals for conspiracy and attempt and ordering a new trial on those counts, while dismissing the appeal on the counselling count.

The appellant appealed his conviction and sentence, arguing the trial judge misapprehended the evidence of a witness, erred in finding the possible source of a burn, and failed to properly apply the W.D. test.

The Court of Appeal found no material misapprehension of evidence, held the trial judge was entitled to draw conclusions about the burn based on common experience, and found no error in the application of the W.D. test.

The sentence appeal was abandoned, and the appeal was dismissed.

The appellant appealed his conviction for enticing a person under 14 years of age and his subsequent designation as a dangerous offender.

The appellant argued the trial judge erred in finding the actus reus and mens rea of the offence, specifically regarding the element of 'enticing' and the subjective intent to deprive a parent of possession.

On the sentence appeal, the appellant challenged the finding that the predicate offence was a serious personal injury offence, the admission of evidence regarding prior acquitted conduct, and the dangerous offender designation over a long-term offender designation.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's assessment of the evidence, the application of the legal elements, or the conclusion that the appellant's psychopathy and pedophilia posed an ongoing danger requiring an indeterminate sentence.

The appellant appealed from the dismissal of a certiorari application to quash his committal to stand trial on charges of possession of cocaine for the purpose of trafficking, possession of the proceeds of crime, and dangerous driving.

The Court of Appeal found no basis to interfere with the order refusing to quash the committal and dismissed the appeal.

The respondents were charged with multiple counts of fraud and conspiracy relating to an investment scam.

The trial judge granted a stay of proceedings under s. 11(b) of the Charter, finding unreasonable delay.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in his allocation of the delay, his determination of prejudice, and his balancing of the accused's rights against the societal interest in having serious charges tried.

The stay was set aside and the matter was ordered to proceed to trial.

The appellant appealed a decision unsealing search warrant material that contained the names of police officers who had not been charged with any offence.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the application judge's conclusion that the public interest in open justice outweighed the officers' privacy interests and that a publication ban was not warranted.

The appellant appealed a Summary Conviction Appeal Court decision that set aside her acquittal.

The appellant argued her s. 10(b) Charter rights were breached because she misunderstood her right to contact her own lawyer rather than duty counsel at the roadside.

The Court of Appeal dismissed the appeal, holding that an unexpressed desire to speak to one's own lawyer, which is not conveyed to the investigating officer, cannot result in a s. 10(b) breach.